ON REHEARING

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4078

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
v.
RODNEY MARSHALL VINSON,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00121-FL-1)

Argued:

January 27, 2015

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

GREGORY

November 3, 2015

and

AGEE,

Circuit

Affirmed by published opinion.

Chief Judge Traxler wrote the
opinion in which Judge Gregory and Judge Agee concur.

ARGUED: Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES

ATTORNEY, Raleigh, North Carolina, for Appellant.
Robert Earl
Waters, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant.
Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North

Carolina, for Appellee.

TRAXLER, Chief Judge:

Police

officers

dispatched

to

the

residence

of

Rodney

Marshall Vinson found a rifle and ammunition during a consensual

search.
Carolina

After

determining

conviction

that

amounting

Vinson

to

had

prior

misdemeanor

North

crime

of

domestic violence, 18 U.S.C. 921(a)(33)(A), the government

charged Vinson

with

possession

of

person, see 18 U.S.C. 922(g)(9).

Vinsons

motion

to

dismiss

the

firearm

by

prohibited

The district court granted

indictment,

concluding

that

Vinson was not a prohibited person because the state statute at

issue did not, as a categorical matter, qualify as a misdemeanor
crime of domestic violence.
In
Gregory

our

previous

dissented,

The government appeals.

opinion

we

in

vacated

this
the

case,

in

district

which

Judge

courts

order

dismissing the indictment and remanded with instructions that

the district court reinstate the indictment against Vinson.

See

United States v. Vinson, No. 14-4078 (4th Cir. filed July 21,
2015).

Vinson

thereafter

filed

petition

for

rehearing

in

which he asserted a new basis for affirming the dismissal of the

indictment.

Upon

petition

rehearing,

for

consideration
we

of

the

point

granted

the

petition

raised
and

in

the

we

now

affirm

the

district

courts

order

dismissing

the

indictment

against Vinson. 1
I.
A.
Section
various

922(g)

classes

of

prohibits
persons,

the

possession

including

those

of

convicted

misdemeanor crime of domestic violence (MCDV).

922(g)(9).

firearms
of

by
a

18 U.S.C.

Subject to certain exceptions not relevant here, a

crime qualifies as a MCDV if it:

(i) is a misdemeanor under Federal, State, or Tribal .
. . law; and

Vinson did not raise the issue we find dispositive in

his brief before this court or the district court. Ordinarily,
. . . we do not decide issues on the basis of theories first
raised on appeal.
Skipper v. French, 130 F.3d 603, 610 (4th
Cir. 1997).
Although this court may affirm judgments on
alternative grounds to those relied upon by a lower court, this
contemplates that the alternative ground shall first have been
advanced in that court, whether or not there considered.
Id.
(citation omitted). The rule precluding consideration of issues
raised for the first time on appeal, however, is prudential, not
jurisdictional.
See id.
The issue Vinson raises involves a
pure question of law that is closely related to the arguments
made by the government in its opening and reply briefs, and the
government, at our request, has responded to Vinsons petition
for rehearing.
Moreover, North Carolina does not have a
mechanism for certifying questions of state law to its Supreme
Court, see Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th
Cir. 2013), and failure to consider the issue would leave in
place our incomplete and thus incorrect analysis of North
Carolina law.
Under these circumstances, we exercise our
discretion to consider the issue raised in Vinsons petition for
rehearing.
See Hormel v. Helvering, 312 U.S. 552, 556-57
(1941).
4

(ii) has, as an element, the use or attempted use of

physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or
guardian of the victim.
18

U.S.C.

921(a)(33)(A).

The

existence

of

the

domestic

relationship between the victim and defendant specified in the

statute is an element of the 922(g)(9) charge that must be
proven

beyond

relationship
offense.

reasonable

need

not

be

doubt

an

by

element

the
of

government,
the

but

underlying

the

state

See United States v. Hayes, 555 U.S. 415, 426 (2009).

As is clear from the terms of the statute, however, the use or

attempted use of physical force, or threatened use of a deadly
weapon, must be an element of the underlying state offense.

The

physical force element of 921(a)(33)(A) is satisfied by the

degree of force that supports a common-law battery conviction,
United

States

v.

Castleman,

134

S.

Ct.

1405,

1413

(2014),

namely, offensive touching, id. at 1410.

To
defendant
familiar

determine
a

whether

prohibited

categorical

prior

person

under

approach.

conviction

Id.

922(g),
at

1413.

renders
we

the

apply

the

Under

the

categorical approach, we look only to the fact of conviction

and the statutory definition of the prior offense. . . . ,
focus[ing] on the elements of the prior offense rather than the
5

conduct underlying the conviction.

United States v. Cabrera-

Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (internal quotation
marks omitted).
A modification to the categorical approach may be used in
cases where the underlying state crime consists of multiple,
alternative elements creating several different crimes, some of
which would match the generic federal offense and others that
would not.

Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir.

2014) (internal quotation marks omitted).

When such divisible

crimes

modified

are

approach,

at

issue,

which

we

permits

may
us

apply
to

the

examine

categorical

limited

class

of

documents to determine which of a [crimes] alternative elements

formed the basis of the defendants prior conviction.
v.

United

States,

divisibility,
divisible

for

133

S.

Ct

however,

is

not

of

applying

purposes

2276,

(2013). 2

2284

enough;

the

[state

modified

Descamps
General
crime]

is

categorical

approach only if at least one of the categories into which the

[crime]

may

be

divided

constitutes,

by

its

elements,

[a

Although Descamps addressed a state crime defined by

statute, we have since held that the Descamps analysis applies
to state crimes whose elements are defined by case law rather
than by statute. See United States v. Aparicio-Soria, 740 F.3d
152, 155 (4th Cir. 2014) (en banc) ([T]he categorical/modified
categorical typologies apply equally to statutory and common law
crimes.); United States v. Hemingway, 734 F.3d 323, 333 (4th
Cir. 2013) ([T]he Descamps divisibility analysis is applicable
to the question of whether a common law offense constitutes a[]
. . . predicate crime.).
6

qualifying predicate offense].

Cabrera-Umanzor, 728 F.3d at

352; see Descamps, 133 S. Ct. at 2285.

B.
Vinsons prior conviction involved a violation of N.C. Gen.
Stat. 14-33, a statute that classifies simple and aggravated
forms of misdemeanor assault, assault and battery, and affray.
Vinson

was

statute,

convicted

which

of

provides

violating
that

any

subsection
person

(c)(2)

who

of

the

commits

any

assault, assault and battery, or affray is guilty of a Class A1

misdemeanor

if,

in

the

course

of

the

assault,

assault

and

battery, or affray, he . . . [a]ssaults a female, he being a

male person at least 18 years of age.

N.C. Gen. Stat. 14-

33(c)(2).
There is no statutory definition of assault, battery, or
affray, so the common-law rules governing these crimes apply to
prosecutions
Roberts,

155

under

N.C.

S.E.2d

303,

Gen.

Stat.

14-33.

305

(N.C.

1967).

See

State

Conviction

v.

under

subsection (c)(2) requires proof of the following elements: (1)

an assault (2) upon a female person (3) by a male person (4) who
is at least eighteen years old.

State v. Wortham, 351 S.E.2d

294, 296 (N.C. 1987).

The district court understood 14-33(c)(2) as establishing
the crime of assault on a female, a crime that can be committed
through an assault, assault and battery, or an affray.
7

In the

district

courts

alternate

means

view,
of

assault,

committing

battery,

the

same

and

affray

crime,

not

were

alternate

elements of different crimes, such that 14-33(c)(2) was not

divisible

and

applicable.

the

modified

categorical

approach

was

not

See Omargharib, 775 F.3d at 198 (explaining that

alternate means of committing a single crime do make the crime

divisible); see also Descamps, 133 S. Ct. at 2285 n.2.
Applying

the

categorical

approach,

the

district

court

concluded that a violation of 14-33(c)(2) did not amount to an

MCDV because the use or threatened use of physical force is not
an element of assault under North Carolina law.
this

conclusion,

decision

in

the

United

district

States

v.

court

White,

In reaching

applied
606

F.3d

this
144

courts

(4th

Cir.

2010), and interpreted the physical force requirement of

921(a)(33)(A)(ii)

to

mean

violent

force,

see

id.

at

153

([T]he phrase physical force means violent force -- that is,

force

capable

of

causing

physical

pain

or

injury

to

another

person. (internal quotation marks omitted)).

After
dismiss,

the

district

however,

the

court

Supreme

granted
Court

Vinsons

issued

its

motion

to

decision

in

Castleman and held, directly contrary to our holding in White,

that violent force was not necessary to satisfy the physical
force requirement of 921(a)(33)(A)(ii).
S.

Ct.

at

1413.

Instead,

the
8

Court

held

See Castleman, 134

that

the

statute

incorporated

the

common-law

meaning

of

force

--

namely,

offensive touching, id. at 1410, and that the requirement of

physical force is satisfied, for purposes of 922(g)(9), by
the

degree

of

force

that

supports

common-law

battery

conviction, id. at 1413.

II.
The sole issue on appeal is whether Vinsons conviction
under N.C. Gen. Stat. 14-33(c)(2) qualifies as a conviction
for

an

MCDV

as

defined

by

18

U.S.C.

921(a)(33)(A).

The

government does not challenge the district courts determination

that Vinsons conviction would not qualify as an MCDV under the
categorical

approach.

Instead,

the

government

argues

that,

contrary to the district courts conclusion, 14-33(c)(2) is

divisible, such that the modified categorical approach may be
applied.

And because the charging document in this case shows

that

conviction

the

wife,

the

was

government

predicated

contends

that

on

the

battery
modified

of

Vinsons

categorical

approach establishes that Vinson was convicted of an MCDV and

that

the

district

court

therefore

erred

by

dismissing

the

indictment against Vinson.

In the governments view, the crime is divisible because
North Carolina law defines assault through alternate elements.
North Carolina law includes three different definitions of the
crime

of

assault.

First,

under
9

what

can

be

called

the

attempted battery formulation, an assault can be committed by

an overt act or an attempt, or the unequivocal appearance of an
attempt, with force and violence, to do some immediate physical
injury to the person of another, which show of force or menace
of violence must be sufficient to put a person of reasonable
firmness in fear of immediate bodily harm.

Roberts, 155 S.E.2d

at 305 (internal quotation marks omitted).

Second, under the

show of violence formulation, an assault can be committed by

a show of violence accompanied by reasonable apprehension of
immediate

bodily

harm

or

injury

on

the

part

of

the

person

assailed which causes him to engage in a course of conduct which

he would not otherwise have followed.

Id.

Finally, under the

completed battery formulation, an assault conviction may be

premised on proof of a battery.

See In re K.C., 742 S.E.2d 239,

243 (N.C. Ct. App. 2013) (When a battery has occurred, assault
may be proven by a finding of either assault or battery on the
victim.); State v. Britt, 154 S.E.2d 519, 521 (N.C. 1967) (A
battery always includes an assault, and is an assault whereby
any force is applied, directly or indirectly, to the person of
another.).

The

government

argues

that

these

different

formulations of assault are alternate elements that render the

crime

divisible

and

thus

permit

categorical approach.

10

application

of

the

modified

Whether

the

multiple

assault

formulations

are

alternate

means or alternate elements is the issue that divided this court

in our original opinion, and we need not delve into that issue
again.

As we have explained, whether a statute or criminal

offense

is

elements

divisible

and

depends

matching

on

the

category

--

existence
that

is,

of

alternate

the

alternate

elements must create at least one category or form of an offense

that matches up to the elements of the generic federal offense
in question.

See Omargharib, 775 F.3d at 197; Cabrera-Umanzor,

728 F.3d at 352.

formulations

Assuming without deciding that the assault

amount

to

alternate

elements

creating

separate

forms of the offense, none of the forms of the offense require

the level of intent necessary to qualify as an MCDV.
A.
As noted above, an MCDV is defined as an offense that has,
as an element, the use or attempted use of physical force, or
the

threatened

use

921(a)(33)(A)(ii).

of

Because

deadly
the

weapon.

threatened

18
use

of

U.S.C.
a

deadly

weapon is not an element of assault under North Carolina law, we

focus

on

the

use

or

attempted

use

of

physical

force

requirement.
In

Leocal

v.

Ashcroft,

543

U.S.

(2004),

the

Supreme

Court, interpreting the crime of violence definition of 18

U.S.C. 16, concluded that the most common employment of the
11

word use connotes the intentional availment of force.

Id. at

9.

merely

The

Court

therefore

held

that

negligent

or

accidental conduct does not constitute a use of physical force.

Id.

Although the Leocal Court expressly did not decide whether

reckless conduct could constitute a use of force, see id. at

13, this court has since concluded that a reckless use of force
does

not

satisfy

the

requirements

of

16,

see

Garcia

v.

Gonzales, 455 F.3d 465, 469 (4th Cir. 2006) ([R]ecklessness,

like negligence, is not enough to support a determination that a
crime is a crime of violence.); accord Bejarano-Urrutia v.
Gonzales, 413 F.3d 444, 447 (4th Cir. 2005).
Because the relevant language in 16 is largely identical
to

that

of

921(a)(33)(A),

applicable to this case.

Leocals

definition

of

use

is

Accordingly, if North Carolina law

permits an assault conviction based on negligent or reckless

conduct,

then

none

of

the

different

assault

formulations

categorically qualify as an MCDV.

B.
North Carolina case law establishes that the defendant must
act intentionally to be guilty of assault.

See, e.g., State v.

Starr, 703 S.E.2d 876, 880 (N.C. Ct. App. 2011) ([A]ll that is
necessary to sustain a conviction for assault is evidence of an
overt act showing an intentional offer by force and violence to
do injury to another sufficient to put a person of reasonable
12

firmness in apprehension of immediate bodily harm. (internal

quotation

marks

and

emphasis

omitted));

State

v.

Britt,

154

S.E.2d 519, 521 (N.C. 1967) ([A]n assault is an intentional

attempt, by violence, to do injury to the person of another.
(internal quotation marks omitted)); State v. Davis, 23 N.C.
125, 127 (N.C. 1840) ([An assault] must be intentional -- for,
if

it

can

be

collected,

notwithstanding

appearances

to

the

contrary, that there is not a present purpose to do an injury,

there is no assault.).

Likewise, North Carolinas pattern jury

instructions addressing assault offenses generally provide that

the defendant must act intentionally.
Instructions

Crim.

208.40

See, e.g., N.C. Pattern

(simple

assault);

id.

208.70

(assault on a female).
Because assaults must be intentional, an assault conviction
under North Carolina law would seem to require a use of force
as defined by Leocal.
rehearing,

however,

As Vinson points out in his petition for

the

requisite

intent

through proof of culpable negligence.

can

be

established

State v. Jones, 538

S.E.2d 917, 923 (N.C. 2000) (actual intent may be implied from
proof of culpable or criminal negligence); State v. Thompson,
454 S.E.2d 271, 273 (N.C. Ct. App. 1995) (Where an alleged
assault

is

unintentional

and

the

perpetrator

acted

without

wrongful purpose in the course of lawful conduct and without

culpable

negligence,

resultant
13

injury

will

be

excused

as

accidental.

(emphasis

added));

see

also

N.C.

Pattern

Instructions - Crim. 307.11 (An injury is accidental if it is

unintentional, occurs during the course of lawful conduct, and
does not involve culpable negligence.).
North Carolina law defines culpable negligence as such
recklessness or carelessness, proximately resulting in injury or
death, as imports a thoughtless disregard of consequences or a
heedless

indifference

to

the

safety

and

rights

of

others.

Jones, 538 S.E.2d at 923 (internal quotation marks omitted).

As

this court explained in United States v. Peterson, 629 F.3d 432

(4th Cir. 2011), this standard, with its focus on thoughtless
disregard,

is

lesser

standard

of

culpability

than

recklessness, which requires at least a conscious disregard of

risk.

Id. at 437 (emphasis added).

Accordingly, as Vinson argues, North Carolina law permits

convictions

for

all

forms

of

assault,

including

completed-

battery assault, in cases where the defendants conduct does not

rise even to the level of recklessness.

See State v. Dammons,

461 S.E.2d 6, 8 (N.C. Ct. App. 1995) (completed-battery case

finding no error in jury instructions stating that defendant
would

not

be

guilty

of

the

assault

if

the

shooting

was

accidental [and] that a shooting is not accidental if it results

from culpable negligence).

Thus, none of the different forms

of assault categorically qualifies as an MCDV, because each form

14

permits conviction for conduct that does not amount to a use

of force under Leocal.

And because none of the assault forms

categorically qualifies as an MCDV, assault is not a divisible

offense, and the modified categorical approach is inapplicable.
See Descamps, 133 S. Ct. at 2285; Cabrera-Umanzor, 728 F.3d at
352.
III.
Because
Carolina

law

none

of

the

have

elements

categories
matching

of
the

assault
elements

under
of

an

North
MCDV

under 18 U.S.C. 921(a)(33)(A), we hereby affirm the district

courts judgment dismissing the indictment against Vinson.

AFFIRMED

15